STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

MICHAEL J. DIGERONIMO, )

)

Petitioner, )

)

vs. )

)

DEPARTMENT OF LABOR AND ) EMPLOYMENT SECURITY, DIVISION OF )

WORKERS' COMPENSATION, ) Case No. 96-1382

)

Respondent, )

)

and )

)

HOME DEPOT and GAB ROBINS, )

)

Intervenors. )

)

RECOMMENDED ORDER

An administrative hearing was conducted on March 27, 1997, in St. Petersburg, Florida, by Daniel Manry, Administrative Law Judge, Division of Administrative Hearings.

APPEARANCES

For Petitioner: Enrique Escarraz, Esquire

2121 Fifth Avenue North Post Office Box 847

St. Petersburg, Florida 33731

For Respondent: Michael G. Moore, Esquire

Department of Labor and Employment Security

Hartman Building, Suite 307 2012 Capital Circle, Southeast

Tallahassee, Florida 32399-2189

For Intervenors: George A. Helm, III, Esquire

Langston, Hess, Bolton, Znosko and Helm, P.A.

111 South Maitland Avenue Maitland, Florida 32751

STATEMENT OF THE ISSUE

The issue in this case is whether the training and education authorized in Section 440.491, Florida Statutes,1 is required for Petitioner to return to suitable gainful employment within the meaning of Section 440.491(1)(g).

PRELIMINARY STATEMENT

By letter dated December 22, 1995, Respondent denied Petitioner's request to be evaluated for training and education on the ground that Petitioner had obtained suitable gainful employment without training and education. Petitioner timely requested an administrative hearing. Respondent referred the matter to the Division of Administrative Hearings to conduct a hearing, and Petitioner's employer and workers' compensation servicing agent intervened.

At the hearing, Petitioner testified in his own behalf, called one witness, and submitted six exhibits for admission in evidence. Respondent and Intervenors presented the testimony of four witnesses and submitted 11 exhibits.

The identity of the witnesses and exhibits, and the rulings regarding each, are set forth in the transcript of the hearing filed on April 14, 1997. Petitioner timely filed his proposed recommended order ("PRO") on May 27, 1997. Respondent and Intervenors timely filed their respective PROs on May 23, 1997. (Home Depot is referred to hereinafter as "Intervenor").

FINDINGS OF FACT

1. Petitioner has been employed by Intervenor as a sales associate since January, 1993. Petitioner sustained an injury on March 3, 1993, while working for Intervenor.

2. Petitioner tore the meniscus in his left knee. Dr. Michael Smith, an orthopedic surgeon, performed a partial medial meniscectomy. On October 7, 1993, Dr. Smith performed a second surgery on the same knee.

3. Petitioner returned to light duty work for half-days on November 15, 1993. He worked half-days until June 30, 1994, when he began working five to six hours a day. He continues to work five to six hours a day for Intervenor.

4. Petitioner reached maximum medical improvement on April 21, 1994. Dr. Smith rated Petitioner's permanent impairment at six percent.

5. Petitioner can not tolerate lifting more than 20 pounds occasionally or more than 10 pounds frequently. He can not tolerate repetitive squatting, stooping, and climbing. Petitioner can not tolerate standing more than six hours at a time in consecutive eight-hour days.

6. Petitioner's current sales position requires too much standing, squatting, stooping, and climbing for Petitioner to work consecutive eight-hour days. However, Petitioner can work consecutive eight-hour days in a job that does not exceed the restrictions Petitioner can tolerate.

7. Petitioner can work consecutive eight-hour days for Intervenor in a commercial sales position because it requires less lifting, standing, squatting, stooping, and climbing each day. However, a commercial sales position is not available. 1. The Pub

8. In July, 1992, Petitioner began working as a bartender for the Pelican Pub (the "Pub"). He was employed by the Pub on March 3, 1993, when he was injured working for Intervenor.

9. Before the injury, Petitioner worked approximately 57 hours a week in both jobs. Petitioner worked approximately five eight-hour or nine-hour shifts for Intervenor. He worked two eight-hour shifts at the Pub.

10. After the injury, Petitioner returned to work at both jobs. However, he does not work 40 hours a week for Intervenor.

11. In August, 1996, Intervenor required Petitioner to elect either full-time status, working 40 hours a week, or part- time status, working four shifts of five to six hours each. Petitioner elected part-time status.

12. Since July, 1994, Petitioner has worked approximately

    48 hours a week at both jobs. Petitioner works approximately 24 hours a week at each job in four six-hour shifts.

13. Petitioner works no more than eight hours a day each day except Monday. Monday is a very light day for business at the Pub. Petitioner has seven hours to rest between his two jobs each Monday.

14. At the Pub, Petitioner can sit much of the time, especially in the first three hours of each shift. While working for Intervenor, Petitioner is on his feet most of the time.

1. Average Weekly Earnings

   1. One of the requirements of "suitable gainful employment" is that Petitioner's average weekly earnings after the injury must equal, as nearly as possible, his average weekly earnings at the time of the accident. The parties stipulated that average weekly earnings at the time of the accident ("pre- injury earnings") were approximately $360. The stipulation does not specify whether it includes earnings from the Pub.

   2. Petitioner argues that earnings from the Pub were excluded from the stipulated amount of pre-injury earnings and should also be excluded from his post-injury earnings. Respondent and Intervenor assert that earnings from the Pub should be included in Petitioner's post-injury earnings, irrespective of the stipulated amount of pre-injury earnings.

   3. Earnings from any job that qualifies as employment is properly included in post-injury earnings. It is uncontroverted that Petitioner's job with Intervenor qualifies as employment.

   4. Petitioner's employment with the Pub is employment within the meaning of Section 440.02(15)(a). The Pub is a private employer that employed four or more employees before and after the injury. Earnings from Petitioner's employment with the Pub are properly included in Petitioner's post-injury earnings.

   5. Before the injury, Petitioner earned approximately $360 a week from his employment in both jobs. He earned $289 a week from his employment with Intervenor, working 41 hours a week at

      $7 an hour. He earned approximately $71 a week from his employment with the Pub, including salary and tips.

   6. After the injury, Petitioner earns approximately $358 from his employment in both jobs. Petitioner earns $214 from his employment with Intervenor, working 24 hours a week at $8.90 an hour. He earns $144 from his employment with the Pub, working 24 hours a week at $6 an hour.

   7. The $214 Petitioner now earns from his employment with Intervenor is less than either the stipulated or actual wages Petitioner earned from that employment before the injury. However, the $358 Petitioner now earns from all employment in both jobs is substantially the same as both the stipulated and actual wages he earned from the same employment before the injury. Petitioner's average weekly earnings after the injury, as nearly as possible, equal his average weekly earnings at the time of the injury.

2. Underemployment

   1. Petitioner is not underemployed within the meaning of Florida Administrative Code Rule 38F-55.0001(16).2 Petitioner's post-injury wages from his employment with Intervenor are less than 80 percent of his pre-injury wages from the same employment.3 However, Petitioner's post-injury wages from all

      employment, as nearly as possible, is equal to his pre-injury wages from the same employment.

   2. Training and education are not required to return Petitioner to suitable gainful employment solely with Intervenor. All that is required is job availability.

   3. Petitioner can earn average wages equal to his pre- injury wages by working five eight-hour shifts for Intervenor in commercial sales when and if such a position becomes available. Petitioner is not precluded from suitable gainful employment with Intervenor by age, education, work history, transferable skills, previous occupation, or injury.

   4. A commercial sales position is reasonably attainable in light of Petitioner's age, education, work history, transferable skills, previous occupation, and injury. It offers an opportunity to restore Petitioner as soon as practicable and as nearly as possible to his pre-injury earnings.

3. Training And Education Benefits

1. On January 22, 1995, Petitioner applied for training and education benefits. Respondent conducted a screening and properly determined that Petitioner should not be referred for vocational evaluation.

2. The screening conducted by Respondent complied with the requirements of Section 440.491(6)(a) and Rule 38F-55.009. Respondent obtained Petitioner's medical file, a history of wages and earnings from Petitioner's employment with Intervenor and the

   Pub, and relevant background information. Respondent then scheduled an interview with Petitioner.

3. Respondent reviewed the medical file, work history, and background information. Respondent investigated the information to determine whether Petitioner had the ability to perform the duties required by his pre-injury employment with Intervenor and the Pub.

4. Respondent interviewed Petitioner and representatives of both employers. Respondent obtained written clarification from the treating physician regarding Petitioner's ability to perform his duties in both jobs.

5. Respondent properly determined that Petitioner should not be referred for vocational evaluation. Petitioner had returned to suitable gainful employment, maintained such employment for at least 90 days, and had transferable skills which allowed him to work in suitable gainful employment within the meaning of Rules 38F-55.009(5) and (6).

6. As soon as was practicable after the accident, Petitioner returned to both of the positions he held prior to the accident. Petitioner has consistently worked approximately 48 hours a week in suitable gainful employment with Intervenor and the Pub.

7. Petitioner's current employment offers a meaningful opportunity to restore Petitioner to his average weekly earnings at the time of the injury. Petitioner's average weekly earnings

   before and after the injury, as nearly as possible, are equal.

8. Training and education are not required for Petitioner to return to suitable gainful employment. Such employment is reasonably attainable in light of his age, education, work history, transferable skills, previous occupation, and injury. 5. Training And Education Goals

9. Petitioner wishes to return to college in a program that leads to a bachelor's degree in sociology. Petitioner has previously earned 84 credit hours from Bucks Community College. Petitioner needs approximately 30 credit hours to complete the requirements for a bachelor's degree.

10. The average annual income for entry level positions in sociology is approximately $20,000. Petitioner may be able to tolerate the duties of a position in sociology more easily than he tolerates those in his current employment if a future position in sociology requires less standing, stooping, squatting, bending, or lifting.

11. A course of study leading to a bachelor's degree is not an education program within the meaning of Rule 38F-8.021(4). Approved education programs are limited to those in vocational and adult education, trade or business schools, and community colleges offering associate degrees.

    CONCLUSIONS OF LAW

12. The Division of Administrative Hearings has jurisdiction over the parties and the subject matter. Section 120.57(1). The parties were duly noticed for the hearing.

13. The burden of proof is on Petitioner. Petitioner must show by a preponderance of evidence that training and education are required for Petitioner to return to suitable gainful employment. Florida Department of Transportation vs. J.W.C. Company, Inc., 396 So. 2d 778 (Fla. 1st DCA 1981); Balino vs. Department of Health and Rehabilitative Services, 348 So. 2d 349 (Fla. 1st DCA 1977).

1. Suitable Gainful Employment

   1. At the time of Petitioner's injury, former Section 440.49(1)(a), Florida Statutes (1993), defined "suitable gainful employment" only for the purposes of former Section 440.49 (entitled "Rehabilitation of injured employees; Special Disability Trust Fund"). In relevant part, former Section 440.49(1)(a) stated:

      1. REHABILITATION OF INJURED EMPLOYEES. -

         * * *

         . . . For purposes of this section only, "suitable gainful employment" means employment . . . which is reasonably attainable in light of the individual's age, education, previous occupation, and injury and which offers an opportunity to restore the individual as soon as practicable and

         as nearly as possible to his average weekly earnings at the time of injury.

   2. The statutory definition of "suitable gainful employment" was judicially interpreted to mean employment that provides an income equal to pre-injury earnings; is appropriate to the medical restrictions imposed by the injury; and is consistent with the employee's aptitude, interest, or motivation to engage in that kind of work. Lowry vs. Bob Evans Farms, Inc., 666 So. 2d 977, 978 (Fla. 1st DCA 1996); Viking Sprinkler Co. vs. Thomas, 413 So. 2d 816, 818 (Fla. 1st DCA 1982).

   3. After the injury, former Section 440.49 was renumbered as Section 440.491. Section 440.491 includes certain changes to former Section 440.49. Laws of Florida, Chapter 93-415, Section

1. However, Section 440.491 does not change the substance of the definition of "suitable gainful employment" in former Section 440.49(1). In relevant part, Section 440.491(1)(g) defines suitable gainful employment as:

   . . . employment . . . that is reasonably attainable in light of the employee's age, education, work history, transferable skills, previous occupation, and injury, and which offers an opportunity to restore the individual as soon as practicable and as nearly as possible to his average weekly earnings at the time of injury.4

   1. Petitioner argues that the statutory changes after his injury were changes to substantive provisions and must be applied prospectively. Petitioner claims that former Section 440.49(1) and the related judicial test control the definition of "suitable gainful employment" in this case.

   2. If the substance of the definition of "suitable gainful

      employment" had changed after Petitioner's injury, Petitioner would be correct. The new definition would not be applied retrospectively.

   3. Workers' compensation law generally imposes a contractual obligation between the parties. The substantive rights of the parties are fixed at the time of the injury. Sullivan vs. Mayo, 121 So. 2d 424, 428 (Fla. 1960); Southern Bakeries vs. Cooper, 659 So. 2d 339, 340 (Fla. 1st DCA 1995).

   4. In the absence of clear legislative intent to the contrary, the law is presumed to operate prospectively. The law will not be applied retrospectively to affect substantive rights of the parties. Arrow Air, Inc. vs. Walsh, 645 So. 2d 422, 425 (Fla. 1994); Alamo Rent-A-Car, Inc. vs. Mancusi, 632 So. 2d 1352, 1358 (Fla. 1994); Walker & LaBerge, Inc. vs. Halligan, 344 So. 2d 239, 241 (Fla. 1977); Hansen vs. State Farm Mutual Automobile Insurance Company, 674 So. 2d 106, 108 (Fla. 1st DCA 1996).

   5. Exceptions to the general rule requiring prospective application of statutory changes include changes that are merely procedural or remedial. Procedural and remedial statutes may be applied retrospectively. Alamo, 632 So. 2d at 1358; Halligan,

      344 So. 2d at 243.

   6. Certain provisions in former Section 440.49(1) and Section 440.491 have been held to be procedural. See, e.g., Lockheed Space Operations vs. Langworthy, 686 So. 2d 665, 667 (Fla. 1st DCA 1996); W.R. Grace & Co. vs. Marshall, 405 So. 2d

      444 (Fla. 1st DCA 1981)(holding, respectively, that changes to provisions in Section 440.491(4) and former Section 440.49(1)(c) concerning the obligation to evaluate an employee's ability to achieve suitable gainful employment were procedural). Other provisions in the statute have been held to be substantive. See, e.g., Clay Hyder Trucking Lines vs. Atherton, 450 So. 2d 318 (Fla. 1st DCA 1984)(holding that a provision in former Section 440.49(1)(a) which fixed responsibility for the cost of rehabilitation was substantive).

   7. The parties did not cite any authority holding that

      the definition of "suitable gainful employment" in former Section 440.49(1) and Section 440.491(1)(g) is either substantive or procedural. No such authority was found by the undersigned.

   8. The definition of "suitable gainful employment" in former Section 440.49(1) and Section 440.491(1)(g) is substantive. The definition is used to determine the rights and duties of the parties pertaining to training and education. See, Lockheed, 686 So. 2d at 666 (holding that substantive provisions are those that affect the rights and duties of the parties).

   9. The substantive rights of the parties were not altered by changes in the statutes defining "suitable gainful employment." Neither the definition itself nor the purposes of the definition were changed after Petitioner's injury.

   10. Before the injury, former Section 440.49(1)(a) used language substantially similar to that in Section 440.491(1)(g)

       to define suitable gainful employment ". . . solely for the purposes of [Section 440.49]." After the injury, Section 440.491(1)(g) uses language substantially similar to that in former Section 440.49(1) to define suitable gainful employment ". . . as used in [Section 440.491]."

   11. The definition of "suitable gainful employment" in Section 440.491(1)(g) does not create or diminish rights that Petitioner had before his injury under former Section 440.49(1). The purpose for which "suitable gainful employment" was defined in former Section 440.49(1) is the same purpose for which it must be defined in this proceeding under Section 440.491(1)(g). The common purpose is to determine whether rehabilitation in the form of training and education is required for Petitioner to return to suitable gainful employment.

   12. Under either statutory definition, training and education are not required because Petitioner has returned to suitable gainful employment without the need for rehabilitation. Petitioner has returned to employment in both of his pre-injury jobs.

   13. Under either statute, suitable gainful employment is reasonably attainable in light of Petitioner's age, education, previous occupation, and injury. Under Section 440.491(1)(g), suitable gainful employment is reasonably attainable in light of Petitioner's transferable skills and work history.

   14. Under either statute, Petitioner's current employment offers an opportunity to restore Petitioner as soon as practicable to his average weekly earnings at the time of the injury. Petitioner's post-injury earnings, as nearly as possible, are equal to his pre-injury earnings.

   15. The judicial test for "suitable gainful employment" that evolved under former Section 440.49(1)(a) can be applied to cases under Section 440.491(1)(g). Since the definition is substantially the same in both statutes, judicial authority that construed definitional terms under the former statute is analogous to common definitional terms in the current statute.

   16. Petitioner has returned to "suitable gainful employment" when tested by the judicial authority asserted by Petitioner. Petitioner's employment after the injury provides earnings equal to his pre-injury earnings. That employment is appropriate to the medical restrictions imposed by the injury. Petitioner is able to tolerate the duties of both jobs. Petitioner's current employment is consistent with his aptitude to engage in that kind of work. See, Thomas, 413 So. 2d at 817- 818; Lowry, 666 So. 2d at 978. After his injury, Petitioner has become interested in and motivated toward a career in sociology. 7. Employment

   17. Petitioner's earnings from his employment at the Pub are properly included in his post-injury earnings. Earnings from the Pub are properly included in post-injury earnings whether

       "suitable gainful employment " is defined under former Section 440.49(1)(a), Section 440.491(1)(g), or the judicial test.

   18. Petitioner's employment with the Pub is "employment" within the meaning of Section 440.02(15)(b)2. The term "employment" is defined in Section 440.02(15)(b)2. to include:

       . . . all private employment’s in which four or more employees are employed by the same employer

       . . . .

       The Pub is a private employer that has employed four or more employees at all times material to this proceeding.

   19. The statutory definition of employment did not change after Petitioner's injury. Rule 38F-55.011(c)(1) considers wages earned from employment in any combination of jobs to determine whether Petitioner has returned to suitable gainful employment. See also, Rules 38F-55.004(6) and 38F-55.001(16).

   20. Petitioner is not underemployed within the meaning of Rule 38F-55.001(16). Petitioner's post-injury average weekly wages from his employment in both jobs, as nearly as possible, are equal to his average weekly wages from the same employment at the time of the accident.

1. Screening And Evaluation

   1. Respondent did not refer Petitioner for vocational evaluation. Petitioner argues that Respondent violated the requirements of former Section 440.49(1).

   2. Former Section 440.49(1)(a) provided, inter alia:

      . . . When an employee has suffered an injury

      . . . and it appears that the injury will preclude the employee from earning wages

      equal to wages earned prior to the injury, the employee shall be entitled to appropriate training and education. Upon request by the employee, the employer, or the carrier, the division shall provide such injured employee with appropriate training and education for suitable gainful employment. . . . Within 10 days of the request, the division shall respond by assigning a public or private evaluator to conduct an evaluation to determine if training and education are appropriate. . . . (emphasis supplied)

   3. In relevant part, Section 440.491(6)(a) provides:

      Upon referral of an injured employee by the carrier, or upon the request of an injured employee, the division shall conduct a training and education screening to determine whether it should refer the employee for a vocational evaluation and, if appropriate, approve training and education . . . for the employee. The division may not approve formal training and education programs unless it determines . . . that the reemployment plan is likely to result in return to suitable gainful employment. (emphasis supplied)

   4. The statutory changes after Petitioner's injury do not increase or diminish the substantive rights Petitioner had before his injury. Before and after his injury, Petitioner enjoyed a statutory right to an evaluation to determine whether training and education are required to return Petitioner to suitable gainful employment. After the injury, the procedure for obtaining an evaluation was changed to require a screening.

   5. The requirement for a screening is procedural. It may be applied retrospectively.

   6. Once Petitioner requested training and education, Respondent was required by Section 440.491(6)(a) to conduct a

      " . . . screening to determine whether it should refer the employee for . . . evaluation and, if appropriate, approve training and education. . . ." Respondent conducted the statutorily required screening.

   7. Rule 38F-55.009, in relevant part, provides that the screening process shall consist of:

      1. a review of all medical and vocational documentation relevant to the . . . injury to determine whether the . . . employee is able to perform the duties of the pre-injury occupation; and

         
         

      2. a review of the documentation which supports the payment of temporary partial disability benefits to determine the . . . employee's inability to obtain suitable gainful employment because of his injury;

      3. an interview with the . . . employee.

         * * *

         1. . . . [Respondent] shall not . . . refer the . . . employee for . . . evaluation:

            * * *

            (c) if the . . . employee has returned to and maintained suitable gainful employment for at least 90 days . . . .

         2. . . . [Respondent] shall not refer the

         . . . employee for . . . evaluation if the

         . . . employee:

         
         

         * * *

         (c) has transferable skills which would allow return to work in suitable gainful employment.

   8. The screening conducted by Respondent complied with the

      requirements of Rule 38F-55.009. Respondent properly determined that Petitioner should not be referred for evaluation because Petitioner had returned to suitable gainful employment without training and education.

   9. The rules promulgated by Respondent do not resolve the issue of whether the requirement for a screening applies to Petitioner's accident in 1993. In relevant part, Rule 38F- 55.015(2) provides:

      The Division shall expend funds . . . only:

      1. for vocational evaluations and retraining for dates of accident on or after October 1, 1989 through December 31, 1993, and

         
         

      2. for reemployment services authorized by the division pursuant to rule chapter 38F-55

         . . . for dates of accident on or after January 1, 1994. (emphasis supplied)

   10. Rule 38F-55.015(2)(a) limits the expenditure of funds for dates of accident before 1994 to "evaluations" and "retraining." The rule does not expressly authorize the expenditure of funds for the "screening" required in Section 440.491(1). Respondent had no express authority under Rule 38F- 55.015(2)(a) to expend funds to conduct a screening for Petitioner.5

   11. Even if former Section 440.49(1) controlled Petitioner's request for training and education, Respondent should not have referred Petitioner for vocational evaluation. After Petitioner requested training and education from

       Respondent, former Section 440.49(1)(a) required Respondent to refer Petitioner for vocational evaluation only after Respondent determined that Petitioner was precluded from ". . . earning wages equal to wages earned prior to the injury."

   12. Even if a screening was not an express requirement under former Section 440.49(1), it was an implied requirement. In effect, the former statute required Respondent to screen

       Petitioner to determine whether Petitioner's post-injury earnings equaled his pre-injury earnings before Respondent could refer Petitioner for evaluation.

   13. Petitioner failed to satisfy the statutory prerequisite for evaluation under former Section 440.49(1). Petitioner's injury did not preclude Petitioner from earning wages equal to wages earned prior to his injury.

2. Training And Education

   1. Even if Petitioner were entitled to training and education, he would not be entitled to education leading to a bachelor's degree. Such education is not contemplated by statute or rule.

   2. The term "training and education" is not defined by statute or rule. It is not defined in former Sections 440.02 or

      440.49(1), in current Sections 440.02 or 440.491(1), in Rule 38F-55 or former Rule 8F-8. However, the term "educational program" is defined by rule.

   3. Rule 38F-55.001(5) defines an "education program," in relevant part, to include:

      . . . a formal course of study or a certificate program in a training and education facility, agency or institution operating under chapter 246, Florida Statutes, and subject to the rules of the State Board of Independent Post-secondary Vocational, Technical, Trade and Business Schools as provided by sections 246.201- 246.231, Florida Statutes; or any community college established under part III of chapter 240, Florida Statutes; or a career education program as defined by section 228.041(22)(a)3., Florida Statutes; or any formal training course for regulated occupations approved by any state regulatory agency. . . .

   4. Former Rule 8F-8.021(4) defined an "education program," in relevant part, to include:

      . . . a formal course of study in a training and education facility, agency, or institution, approved by one of the Department of Education Regional Coordinating Councils for vocational and adult education programs, or the State Board of Independent Post-Secondary Vocational, Technical, Trade & Business Schools and at any Community College established under part III of chapter 240.

   5. Rule 38F-55.001(5) and former Rule 38F-8.021(4) limit the definition of an "education program" to vocational or adult education, trade or business schools, and community college programs leading to associate degrees. Section 240.301(3)(a). Neither rule contemplates a college program leading to a bachelor's degree.

3. Attorney Fees

1. Petitioner's requests for attorney fees and costs are

   denied. An award of fees and costs is not allowable unless specifically authorized. Shipp vs. State Workers' Compensation Trust Fund, 481 So. 2d 76 (Fla. 1st DCA 1986); Knight vs. City of Miami, 421 So. 2d 21 (Fla. 1st DCA 1982). The fees and costs Petitioner seeks are not specifically authorized in Chapter 440.

2. Fees and costs are authorized in Section 440.34 only if Petitioner is the prevailing party and, then, only if awarded by a judge of compensation claims. Petitioner is not the prevailing party in this proceeding, and the undersigned is not a judge of compensation claims.

3. Fees and costs may be awarded by the undersigned in Chapter 120 if Petitioner is the prevailing party, and the nonprevailing party participated in the proceeding for an improper purpose. Section 120.59(6)(b). Petitioner is not the prevailing party.

4. Even if Petitioner had prevailed, neither Respondent nor Intervenor participated in this proceeding for an improper purpose. Both Respondent and Intervenor presented justifiable issues of law or fact.

5. Neither Respondent nor Intervenor pursued this matter for improper purposes. Neither engaged in unnecessary delay or needlessly increased Petitioner's costs in pursuing the remedies Petitioner sought in this proceeding.

RECOMMENDATION

Based upon the foregoing Findings of Fact and Conclusions of Law, it is

RECOMMENDED that Respondent enter a Final Order finding that training and education are not required for Petitioner to return to suitable gainful employment and denying Petitioner's request for training and education.

DONE AND ENTERED this 11th day of July, 1997, in Tallahassee, Leon County, Florida.

DANIEL MANRY

Administrative Law Judge

Division of Administrative Hearings The DeSoto Building

1230 Apalachee Parkway

Tallahassee, Florida 32399-3060

(904) 488-9675 SUNCOM 278-9675

Fax Filing (850) 921-6847

Filed with the Clerk of the Division of Administrative Hearings this 11th day of July, 1997.

ENDNOTES

1/ All chapter and section references are to Florida Statutes (1995) unless otherwise stated.

2/ Unless otherwise stated, all references to rules are to rules promulgated in the Florida Administrative Code in effect on the date of this Recommended Order.

3/ Petitioner's post-injury average weekly wage from Intervenor is approximately 74 percent of Petitioner's reported income and approximately 59 percent of the stipulated average weekly wage before the injury.

4/ Sec. 440.491(1)(g) adds the terms "transferable skills" and "work history" as elements in the definition of suitable gainful

employment. Neither term was used to define suitable gainful employment in former Sec. 440.49(1). Sec. 440.491(1)(g) replaces the term "individual's age," in former Sec. 440.49(1), with the term "employee's age."

5/ The rule is problematic for other reasons. Rule 38F- 55.015(2)(b) fails to include any express authority for the expenditure of funds for vocational evaluations for dates of accident on or after January 1, 1994. Sec. 440.491(6)(a) precludes the expenditure of funds for training and education in the absence of a vocational evaluation. If the rule precludes the expenditure of funds for a vocational evaluation and if the statute precludes training and education in the absence of a vocational evaluation, the rule and the statute arguably work together to preclude the expenditure of funds for either purpose and thereby reduce the statute to a nullity.

The rule also fails to explain the difference, if any, in the term "retraining," used in Rule 38F-55.015(2)(a), and the term "reemployment services," used in Rule 38F-55.015(2)(a).

While the latter term is defined in Sec. 440.491(1)(e), the former term is not defined in either former Sec. 440.49(1), Sec. 440.491(1), Sec. 440.02, or Rule 38F-55.001.

Sections 440.491(1)(g) and (6)(a) use neither the term "retraining" nor the term "reemployment services." Rather, the relevant statutes use the term "training and education." The term "training and education" is not defined in Secs. 440.491(1), 440.02, or Rule 38F-55.001. However, the term "education program" is defined in Rule 38F-55.001(5).

COPIES FURNISHED:

Douglas L. Jamerson, Secretary Department of Labor and

Employment Security Hartman Building, Suite 303

2012 Capital Circle Southeast Tallahassee, Florida 32399-2152

Edward Dion, General Counsel Department of Labor and

Employment Security Hartman Building, Suite 307

2012 Capital Circle Southeast Tallahassee, Florida 32399-3100 Enrique Escarraz, Esquire

2121 Fifth Avenue North Post Office Box 847

St. Petersburg, Florida 33731

Michael G. Moore, Esquire Department of Labor and

Employment Security Hartman Building, Suite 307

2012 Capital Circle Southeast Tallahassee, Florida 32399-2189

George A. Helm, III, Esquire Langston, Hess, Bolton,

Znosko and Helm, P.A.

111 South Maitland Avenue Maitland, Florida 32751

NOTICE OF RIGHT TO SUBMIT EXCEPTIONS

All parties have the right to submit written exceptions within 15 days from the date of this Recommended Order. Any exceptions to this Recommended Order should be filed with the agency that will issue the final order in this case.

1. All chapter and section references are to Florida Statutes (1995) unless otherwise stated.

   
   

2. Unless otherwise stated, all references to rules are to rules promulgated in the Florida Administrative Code in effect on the date of this Recommended Order.

   
   

3. Petitioner's post-injury average weekly wage from Intervenor is approximately 74 percent of Petitioner's reported income and approximately 59 percent of the stipulated average weekly wage

   before the injury.

   
   

4. Sec. 440.491(1)(g) adds the terms "transferable skills" and "work history" as elements in the definition of suitable gainful employment. Neither term was used to define suitable gainful employment in former Sec. 440.49(1). Sec. 440.491(1)(g) replaces the term "individual's age," in former Sec. 440.49(1), with the term "employee's age."

   
   

5. The rule is problematic for other reasons. Rule 38F- 55.015(2)(b) fails to include any express authority for the expenditure of funds for vocational evaluations for dates of accident on or after January 1, 1994. Sec. 440.491(6)(a) precludes the expenditure of funds for training and education in the absence of a vocational evaluation. If the rule precludes the expenditure of funds for a vocational evaluation and if the statute precludes training and education in the absence of a vocational evaluation, the rule and the statute arguably work together to preclude the expenditure of funds for either purpose and thereby reduce the statute to a nullity.

The rule also fails to explain the difference, if any, in the term "retraining," used in Rule 38F-55.015(2)(a), and the term "reemployment services," used in Rule 38F-55.015(2)(a).

While the latter term is defined in Sec. 440.491(1)(e), the former term is not defined in either former Sec. 440.49(1), Sec. 440.491(1), Sec. 440.02, or Rule 38F-55.001.

Sections 440.491(1)(g) and (6)(a) use neither the term "retraining" nor the term "reemployment services." Rather, the relevant statutes use the term "training and education." The term "training and education" is not defined in Secs. 440.491(1), 440.02, or Rule 38F-55.001. However, the term "education program" is defined in Rule 38F-55.001(5).

COPIES FURNISHED:

Douglas L. Jamerson, Secretary Department of Labor and

Employment Security Hartman Building, Suite 303

2012 Capital Circle Southeast Tallahassee, Florida 32399-2152

Edward Dion, General Counsel Department of Labor and

Employment Security Hartman Building, Suite 307

2012 Capital Circle Southeast Tallahassee, Florida 32399-3100 Enrique Escarraz, Esquire

2121 Fifth Avenue North Post Office Box 847

St. Petersburg, Florida 33731

Michael G. Moore, Esquire Department of Labor and

Employment Security Hartman Building, Suite 307

2012 Capital Circle Southeast Tallahassee, Florida 32399-2189

George A. Helm, III, Esquire Langston, Hess, Bolton,

Znosko and Helm, P.A.

111 South Maitland Avenue Maitland, Florida 32751

NOTICE OF RIGHT TO SUBMIT EXCEPTIONS

All parties have the right to submit written exceptions within 15 days from the date of this Recommended Order. Any exceptions to this Recommended Order should be filed with the agency that will issue the final order in this case.

Docket for Case No: 96-001382

Orders for Case No: 96-001382